Ultra Vires Claim Explained (Tex. 2011) (Ex parte Young type suit against governmental official for prospective relief under state law)

ULTRA VIRES CLAIM

A suit against a state official for acting outside his authority is not barred by sovereign immunity. See City of El Paso v. Heinrich, 284 S.W.3d 370-74 (Tex. 2009). While suits to try the State’s title are barred by immunity, in some instances a party may maintain a trespass to try title action against  governmental officials acting in their official capacities. See Lain, 349 S.W.2d at 581.

In Heinrich, the [Texas Supreme] Court affirmed the rule that suits for declaratory or injunctive relief against a state official to compel compliance with statutory or constitutional provisions are not suits against the State. See Heinrich, 284 S.W.3d at 370-74. If a government official acting in his official capacity possesses property without authority, then possession is not legally that of the sovereign. Under such circumstances, a defendant official’s claim that title or possession is on behalf of the State will not bar the suit. See Lain, 349 S.W.2d at 581-83. A suit to recover possession of property unlawfully claimed by a state official is essentially a suit to compel a state official to act within the officer’s statutory or constitutional authority, and the remedy of compelling return of land illegally held is prospective in nature.

SOURCE: Texas Parks and Wildlife Department v. The Sawyer Trust, No. 07-0945 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson)

The State’s immunity is referred to as sovereign immunity, while that of political subdivisions of the State is referred to as governmental immunity. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).

What is a takings claim? (Tex. 2011)

CONSTITUTIONAL PROTECTION OF PRIVATE PROPERTY AGAINST GOVERNMENTAL TAKE-OVER (otherwise known as expropriation, nationalization)  

The Texas Constitution provides that “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by theconsent of such person.” TEX. CONST. art. I, § 17. Likewise, the United States Constitution provides “nor shall private property be taken for public use, without just compensation.” U.S. CONST. amend. V.

Exception to sovereign immunity principle: No legislative waiver of immunity required

Sovereign immunity does not shield the State from claims based on unconstitutional takings of  roperty. See, e.g., Holland, 221 S.W.3d at 643; Steele, 603 S.W.2d at 791. Whether the government’s actions are sufficient to constitute a taking is a question of law.

ELEMENTS OF UNCONSTITUTIONAL TAKINGS CLAIM

To establish a takings claim, the claimant must seek compensation because the defendantintentionally performed actions that resulted in taking, damaging, or destroying property for public use without the owner’s consent. See id. Whether a taking has occurred depends largely on definitional and conceptual issues. See 2A JULIUS L. SACKMAN, NICHOLS ON EMINENT DOMAIN §6.01[1] (3d ed. 2006).

The premise for a constitutional takings cause of action is that one person should not haveto absorb the cost of his property being put to a public use unless he consents. See Steele, 603 S.W.2d at 789. In contrast to a trespass to try title claim, which quiets title and the right of possession to property, a successful takings claim entitles a claimant to compensation, not to possession of the property. See TEX. CONST. art. I, § 17 (“No person’s property shall be taken . . . without adequate compensation being made . . . .”) (emphasis added); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) (stating that section 17 of the Texas Constitution waives immunity only when a claimant is seeking compensation); cf. Martin, 133 S.W.3d at 264-65 (“[a] trespass to try title action is the method of determining title to lands, tenements, or other real property.” (quoting TEX. PROP. CODE §22.001)).

SOURCE: Texas Supreme Court Opinion in Texas Parks & Wildlife Department v. The Sawyer Trust, No. 07-0945 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson)

RELATED LEGAL CONCEPTS: eminent domain power, condemnation of private property for public use, just compensation

END GAME: Texas Supreme Court clears the docket of numerous cases, some pending for years

LAST WORD IN VIOXX CASE AND MANY OTHERS

The Supremes on Texas' highest court for civil appeals end the fiscal year with raft of opinions in 19 cases, including a decision construing an attorney fee agreement in a high-dollar case as a matter of law (and disapproving the issue having been sent to the jury), an appeal involving the application of the harmful error rule in the review of summary judgment granted on a ground omitted from the motion, and cases involving issues of governmental immunity, mootness and ripeness. 

Among last Friday's most media-attention grabbing decisions are the Supremes' approval of the "pole tax" charged on customers of nude dancing establishments that also serve booze as constitutionally kosher under the First Amendment, and reversal of a multi-million Vioxx judgment for insufficient proof that the ill-fated drug did in fact cause the patient's death. 

Texas Supreme Court Membership as of 2010-2011

[NOTE: I intend to update the case-specific info when I find more time. The number of opinions, not to mention concurrences and dissents, is somewhat overwhelming]  

MOST RELEVANT NEW TEX. DECISIONS GIVEN THE FOCUS OF THIS BLAWG:

Anglo-Dutch Petro Int. Inc. v. Greenberg Peden, P.C., No. 08-0833 
(Tex. Aug. 26, 2011)(Opinion by Justice Nathan Hecht)
(contract construction, legal services agreement not ambiguous and as such not a jury issue)
ANGLO-DUTCH PETROLEUM INTERNATIONAL, INC. AND ANGLO-DUTCH (TENGE) L.L.C. v. GREENBERG 
PEDEN, P.C. AND GERARD J. SWONKE; from Harris County; 14th district (14-07-00343-CV, 267 SW3d 454, 
08-26-08)  
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Johnson, Justice 
Willett, and Justice Guzman joined. [pdf]  
Justice Wainwright delivered an opinion concurring in part and dissenting in part. [pdf]
Justice Lehrmann delivered a dissenting opinion, in which Justice Medina and Justice Green joined. [pdf]
Link to e-briefs including amicus briefs:ANGLO-DUTCH PETROLEUM INTERNATIONAL, INC. v. GREENBERG PEDEN, P.C.

The Houston Exploration Co v. Wellington Underwriting Agencies, Ltd., 
No. 08-0890 (Tex. Aug. 26, 2011)(Opinion by Justice Nathan Hecht)
(coverage, insurance contract construction, effect of strike-through)
THE HOUSTON EXPLORATION CO. AND OFFSHORE SPECIALTY FABRICATORS, INC. v. WELLINGTON 
UNDERWRITING AGENCIES, LTD., ET AL.; from Harris County; 14th district (14-07-00970-CV, 267 SW3d 
277, 07-17-08)  2 petitions    
The Court affirms the court of appeals' judgment.
Justice Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Medina, Justice Green, 
and Justice Guzman joined, and in Parts I and III of which Justice Johnson joined. [pdf]
Justice Johnson delivered a concurring opinion. [pdf]  
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Willett and Justice Lehrmann joined. 
[pdf]
Link to e-briefs including amicus briefs:OFFSHORE SPECIALTY FABRICATORS, INC. v. WELLINGTON UNDERWRITING AGENCIES, LTD.    

G&H Towing Co. v. Magee, 

No. 10-0145 (Tex. Aug. 26, 2011)(per curiam opinion)
(grant of more relief than requested, finality and partial summary judgment, harmful error analysis, 
exception to rule that ground must be stated in the summary judgment motion)

G & H TOWING COMPANY, ET AL. v. CORY WAYNE MAGEE, ET AL.; from Harris County; 1st district (01-07-
00572-CV, 312 SW3d 807, 11-30-09)  
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without 
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that 
court.
Per Curiam Opinion [pdf]
Link to e-briefs: G & H TOWING CO. v. MAGEE    

Epps v. Fowler, 

No. 10-0283 (Tex. Aug. 26, 2011)(Opinion by Justice Debra Lehrmann)

(Is the defendant the prevailing party for attorney fee purposes when the plaintiff nonsuits? - It depends)
CHRISTOPHER N. EPPS AND LAURA L. EPPS v. BRUCE FOWLER, JR. AND STEPHANIE L. FOWLER; from 
Williamson County; 3rd district (03-08-00055-CV, ___ SW3d ___, 02-10-10)  
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, 
Justice Green, Justice Willett, and Justice Guzman joined. [pdf]
Justice Hecht delivered a dissenting opinion, in which Justice Medina and Justice Johnson joined. [pdf]
Link to e-briefs: EPPS v. FOWLER  

Texas Parks & Wildlife Department v. The Sawyer Trust, 
No. 07-0945 (Tex. Aug. 26, 2011) (Opinion by Justice Johnson) 
(sovereign immunity issue, takings claim, opportunity to replead and assert ultra vires claim)
TEXAS PARKS AND WILDLIFE DEPARTMENT v. THE SAWYER TRUST; from Donley County; 7th district (07-
06-00487-CV, ___ SW3d ___, 08-22-07)    
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, 
Justice Medina, Justice Green, Justice Willett, Justice Guzman, and Justice Lehrmann joined. [pdf]
Chief Justice Jefferson delivered a concurring opinion, in which Justice Medina, Justice Willett, and Justice 
Guzman joined. [pdf]
Justice Hecht delivered an opinion concurring in part and dissenting in part.
Link to e-briefs: TEXAS PARKS AND WILDLIFE DEPARTMENT v. THE SAWYER TRUST    


City of Dallas v. Albert, No. 07-0284 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson)
(multiple governmental immunity and waiver-of-immunity issues)
CITY OF DALLAS v. KENNETH E. ALBERT, ET AL.; from Collin County; 5th district (05-03-01297-CV, 05-03-
01298-CV, 214 SW3d 631, 12-21-06) 2 petitions
motion to strike response to notice regarding counsel denied; motion to strike notice of appearance denied; 
motion to consider cause denied    
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Phil Johnson delivered the opinion of the Court, in which Justice Wainwright, Justice Medina, Justice 
Green, Justice Guzman, and Justice Lehrmann joined, and in which Chief Justice Jefferson and Justice Hecht 
joined except to Part II-B. [pdf]
Justice Hecht delivered an opinion concurring in part and dissenting in part, in which Chief Justice Jefferson 
joined. [pdf]
Justice Willett delivered a dissenting opinion. [pdf]
Link to e-briefs: CITY OF DALLAS v. ALBERT      


Robinson v. Parker [Houston Mayor],
No. 08-0658 (Tex. Aug. 26, 2011)(Opinion by Justice Paul Green)
(ripeness doctrine)(jurisdictional dismissal)
CARROLL G. ROBINSON, BRUCE R. HOTZE, AND JEFFREY N. DAILY v. ANNISE D. PARKER, MAYOR; 
CITY OF HOUSTON; HOUSTON CITY COUNCIL, ET AL.; from Harris County; 14th district (14-06-00167-CV, 
260 SW3d 463, 04-03-08)  
The Court vacates the judgments of the court of appeals and the trial court and dismisses the case for want 
of jurisdiction.
Justice Green delivered the opinion of the Court. [pdf]
(Justice Guzman not sitting)
Link to e-briefs: ROBINSON v. BILL WHITE, MAYOR (one amicus brief)

OTHER CASES DECIDED BY THE TEXAS SUPREME COURT AUGUST 26, 2011

Texas Mutual Ins. Co. v. Ruttiger,  
No. 08-0751 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson)
(Worker's Compensation Act)
TEXAS MUTUAL INSURANCE COMPANY v. TIMOTHY J. RUTTIGER; from Galveston County; 1st district (01-
06-00897-CV, 265 SW3d 651, 07-31-08)  
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to that 
court.
Justice Johnson delivered the opinion of the Court with respect to Parts I, II, III, IV, and VI, in which Justice 
Hecht, Justice Wainwright, Justice Medina, Justice Willett and Justice Guzman joined, and an opinion with 
respect to Part V, in which Justice Hecht, Justice Wainwright, and Justice Medina joined. [pdf]
Justice Willett delivered a concurring opinion, in which Justice Guzman joined. [pdf]  
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green and Justice Lehrmann joined. 
[pdf]
Link to e-briefs incl. amicus briefs and responses s:  TEXAS MUTUAL INS. CO. v. RUTTIGER   

Merck & Co., Inc. v. Garza,   
No. 09-0073 (Tex. Aug. 26, 2011)(Opinion by Justice Nathan Hecht)  
(Vioxx judgment thrown out, causation proof found wanting)
MERCK & CO., INC. v. FELICIA GARZA, ET AL.; from Starr County; 4th district (04-07-00234-CV, 277 SW3d 
430, 12-10-08)  
The Court reverses the court of appeals' judgment and renders judgment.
Justice Hecht delivered the opinion of the Court. [pdf]
(Justice Willett and Justice Guzman not sitting)
Link to e-briefs:  MERCK & CO., INC. v. GARZA      

St. David's Healthcare Partnership, L.P.,      
No. 10-0524 (Tex. Aug. 26, 2011)(per curiam opinion)
(slip and fall as med-mal claim)
ST. DAVID'S HEALTHCARE PARTNERSHIP, L.P., LLP D/B/A ST. DAVID'S HOSPITAL AND ST. DAVID'S 
COMMUNITY HEALTH FOUNDATION v. GENARO ESPARZA, JR.; from Travis County; 3rd district (03-09-
00734-CV, 315 SW3d 601, 05-13-10)    
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without 
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial 
court.
Per Curiam Opinion [pdf]  
Link to e-briefs: ST. DAVID'S HEALTHCARE PARTNERSHIP, L.P. v. ESPARZA   

Lesley v. Veterans Land Board of Texas,    
No. 09-0306 (Tex. Aug. 26, 2011)(Opinion by Justice Hecht)

(oil and gas law - restrictive covenant to prevent drilling on land developed for residential use)   
BETTY YVON LESLEY, ET AL. v. VETERANS LAND BOARD OF THE STATE OF TEXAS, ET AL.; from Erath 
County; 11th district (11-07-00034-CV, 281 SW3d 602, 01-22-09)  
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the 
trial court.
Justice Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Medina, Justice Green, 
Justice Johnson, Justice Willett, Justice Guzman, and Justice Lehrmann joined. [pdf]
(Chief Justice Jefferson not sitting)
Link to e-briefs: LESLEY v. VETERANS LAND BOARD OF THE STATE OF TEXAS (VLB) (amicus briefs)  

Ins. Co. of the State of Pennsylvania v. Muro, No. 09-0340 (Tex. Aug. 26, 2011)
(Opinion by Justice David Medina) (workers compensation benefits taken away)
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. CARMEN MURO; from Dallas County; 5th 
district (05-07-00279-CV, 285 SW3d 524, 03-12-09)  
The Court reverses the court of appeals' judgment and renders judgment.
Justice Medina delivered the opinion of the Court. [pdf]
Link to e-briefs including amicus briefs: INS. CO. OF THE STATE OF PA v. MURO 



Combs v. Texas Entertainment Ass'n, Inc., No. 09-0481 (Tex. Aug. 26, 2011)(Opinion by Justice Nathan 
Hecht)($5 per customer nude dancing "pole tax" at strip joints serving alcohol not unconstitutional under First Amendment)

SUSAN COMBS, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS, AND GREG 

ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS v. TEXAS ENTERTAINMENT ASSOCIATION, 
INC. AND KARPOD, INC.; from Travis County; 3rd district (03-08-00213-CV, 287 SW3d 852, 06-05-09)   
The Court reverses the court of appeals' judgment and remands the case to the trial court. [pdf]  
Justice Hecht delivered the opinion of the Court.
Link to e-briefs: COMBS v. TEXAS ENTERTAINMENT ASSOC., INC. (2 amicus briefs)    


Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, No. 09-0901 (Tex. Aug. 26, 
2011)(Opinion by Justice Don R. Willett)(oil and gas law, no private condemnation power)
TEXAS RICE LAND PARTNERS, LTD. AND MIKE LATTA v. DENBURY GREEN PIPELINE-TEXAS, LLC; from 
Jefferson County; 9th district (09-09-00002-CV, 296 SW3d 877, 09-24-09)  
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Willett delivered the opinion of the Court. [pdf]
Link to e-briefs: TEXAS RICE LAND PARTNERS, LTD. v. DENBURY GREEN PIPELINE-TEXAS LLC (including 
briefs by several amici)

Texas A&M University - Kingsville v. Yarbrough,   
No. 09-0999 (Tex. Aug. 26, 2011) (Chief Justice Wallace Jefferson) 
(professor's grievance dispute with state university over negative evaluation moot after grant of tenure; exceptions to mootness doctrine rejected)

TEXAS A&M UNIVERSITY - KINGSVILLE v. MELODY YARBROUGH; from Kleberg County; 13th district (13-
07-00744-CV, 298 SW3d 366, 09-24-09)  
The Court reverses the court of appeals' judgment and renders judgment.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice Medina, Justice Green, Justice 
Guzman, and Justice Lehrmann joined. [pdf]
Justice Willett delivered a dissenting opinion, in which Justice Hecht, Justice Wainwright, and Justice Johnson 
joined. [pdf]
Link to e-briefs: TEXAS A&M UNIVERSITY - KINGSVILLE v. YARBROUGH   

FPL Farming Ltd. v. Environmental Processing Systems, L.C.,   
No. 09-1010 (Tex. Aug. 26, 2011)
(Opinion by Justice Dale Wainwright)(liability re: waste water injection well)
FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C.; from Liberty County; 9th district 
(09-08-00083-CV, 305 SW3d 739, 10-29-09)  
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Wainwright delivered the opinion of the Court. [pdf]
Link to e-briefs: FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C.     

In Re State of Texas, No. 10-0235 (Tex. Aug. 26, 2011)(Chief Jefferson) 
(severance order set aside as  prejudicial by mandamus)
IN RE STATE OF TEXAS; from Travis County; 3rd district (03-10-00121-CV, ___ SW3d ___, 03-31-10)  
The Court conditionally grants the writ of mandamus.
Chief Justice Jefferson delivered the opinion of the Court. [pdf]
Link to e-briefs:  (including multiple amicus briefs): IN RE STATE OF TEXAS   

Barth v. Bank of America, N.A., No. 10-0659 (Tex. Aug. 26, 2011)(per curiam opinion) 

(misnomer distinguished from misidentification of party in law suit)
JERRY L. BARTH v. BANK OF AMERICA, N.A.; from Hidalgo County; 13th district (13-08-00612 CV, ___ 
SW3d ___, 05-06-10)    
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without 
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that 
court.
Per Curiam Opinion [pdf]
Link to e-briefs:  BARTH v. BANK OF AMERICA, N.A.  

Austin State Hospital v. Graham, No. 10-0674 (Tex. Aug. 26, 2011) (per curiam opinion) 
(governmental employee's interlocutory appeal of order denying motion to dismiss)
AUSTIN STATE HOSPITAL, DR. VIKAR NUZHATH AND DR. ERIK LINDFORS v. JOEL GRAHAM; from Dallas 
County; 5th district (05-09-01312-CV, 319 SW3d 905, 08-04-10)  
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without 
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that 
court.
Per Curiam Opinion [pdf]
Link to e-briefs: AUSTIN STATE HOSP. v. GRAHAM